Nedarim, 7

1) "YAD" FOR TZEDAKAH

QUESTION: The Gemara discusses whether the laws of Yados apply to Kidushin,
Pe'ah, Tzedakah, Hefker, and Beis ha'Kisei, just as they apply to Nedarim.
REBBI AKIVA EIGER (in GILYON HA'SHAS) asks a question according to the words
of the RAN earlier (beginning of 6b). The Ran says that it would have been
possible to learn the Halachah of Yados from Nedarim to all other areas
through a Binyan Av ("Mah Matzinu") if not for the fact that Nedarim are
more stringent (and thus take effect more easily), since they can be made
with speech alone, without any action. Rebbi Akiva Eiger asks that this
explains why Yados of Kidushin (which requires an action) cannot be learned
from Yados of Nedarim. Tzedakah, though, takes effect with speech alone,
without any action, just like Nedarim! Why, then, should we not be able to
derive from Nedarim that Yados work for Tzedakah?

The Acharonim point out that Rebbi Akiva Eiger should have asked this
question on the Gemara earlier, when Rav Papa asks if Yados work for Pe'ah.
Pe'ah, like Nedarim and Tzedakah, also takes effect through speech alone,
and thus we could have learned from Nedarim that Yados work for Pe'ah!

It could be that Rebbi Akiva Eiger does not ask from Pe'ah, because Pe'ah is
not as severe as Nedarim, because -- even though it takes effect with speech
alone -- it can only take effect in a field that fits certain criteria (such
as a field that is obligated for Pe'ah from which Pe'ah has not yet been
designated). In contrast, Nedarim can take effect on all items with no
limiting criteria. (See AYELES HA'SHACHAR.)

Also, why does Rebbi Akiva Eiger not ask his question on the following
Gemara, which asks whether Yados work for Hefker? Hefker also takes effect
with speech alone, like Nedarim (and Tzedakah and Pe'ah)! Perhaps it is
because Hefker does not create an Isur like a Neder does, and therefore
Hefker is much more lenient than Nedarim. Similarly, the Gemara asks whether
Yados work for Beis ha'Kisei, since Beis ha'Kisei does not create an Isur
d'Oraisa, and therefore it is much more lenient (so that perhaps Yados will
not work).

ANSWERS:

(a) Regarding Rebbi Akiva Eiger's question from Tzedakah, which seems to be
just as severe as Nedarim, it could be that the Ran is following his own
view that Tzedakah is considered a monetary matter, and not a matter of
Isur. Hence, the rule that "we do not learn a Halachah of a monetary matter
from a Halachah of Isur" (Kesuvos 46b) applies, unless the verse
specifically compares the two with a Hekesh. This answers the question from
Pe'ah and Hefker as well, which are also considered monetary matters and not
matters of Isur.

However, according to this, it should be obvious that *Shevu'ah* can be
learned from Neder with a Mah Matzinu. If so, why does the Ran (beginning of
7a) ask that the Gemara also should have questioned whether there is a Yad
for Shevu'ah, and the only reason that it does not ask is because there is a
Hekesh between Nedarim and Shevu'os? Even if there were no Hekesh, there
would be no reason to ask whether Yados work for Shevu'os, because we would
have been able to learn it from Nedarim through a Mah Matzinu!

(b) There is another question on the explanation of the Ran. The Ran
(beginning of 4b) writes that we cannot learn Yados of Nezirus from Yados of
Nedarim through a Mah Matzinu, because "Ein Onshin Min ha'Din" -- a
punishment cannot be derived through an exegetical process (it must be
written in the Torah explicitly, or learned from a Hekesh) -- and had we
learned Yados of Nezirus from Nedarim through a Mah Matzinu, we would not
have been abl eto administer Malkus for violating a Nezirus made with a Yad.
Accordnig to this, how can the Ran himself suggest that Yados of Kidushin
can be learned from Nedarim through a Mah Matzinu? The Mah Matzinu will not
be able to teach that Yad works for Kidushin because "Ein Onshin Min ha'Din"
(we will not be able to administer punishment if a woman commits adultery
after being married through Yad l'Kidushin)! (It is possible that according
to the Ran, the Gemara is learning that Yados will create only the Isur of
Kidushin but will not enable us to administer a punishment for adultery from
the Kidushin created with a Yad. However, Shmuel, who says that Yados work
for Kidushin, implies that Kidushin formed through a Yad is a full-fledged
Kidushin!) (See SHALMEI NEDARIM.)

In addition, the ROSH and TOSFOS point out that we should not be able to
learn through a Binyan Av from Nedarim that Yados works for any other
category of Halachah. This is because the Torah teaches that Yados works in
two places -- for Nedarim and for Nezirus. If Yados could be learned from
Nedarim through a Binyan Av, then the Torah would not have to teach that
Yados work for Nezirus! The fact that the Torah teaches that Yados work for
Nezirus shows that Yados cannot be derived through a Binyan Av; it is a
situation of "Shnei Kesuvim ha'Ba'im k'Echad, v'Ein Melamdim!" How, then,
can the Ran say that we could learn Yados of Kidushin from a Binyan Av?

The Rosh and Tosfos explain that the reason we could learn that Yados work
for Kidushin is not because of a Binyan Av from Nedarim, but because
Kidushin might be considered a form of Hekdesh. If the Torah teaches that
Yados work for Hekdesh, then Yados should also work for Kidushin.

The Ran seems to rejects this explanation because he considers it forced to
say that Kidushin should be considered a form of Hekdesh. Therefore, he has
to explain that we learn Yados of Kidushin from a Mah Matzinu. What about
the problems of "Ein Onshin Min ha'Din" and "Shnei Kesuvim ha'Ba'im
k'Echad?" The Ran holds that this Limud would not have the problem of "Ein
Onshim Min ha'Din," because when the Torah teaches that Yados work for
Nedarim, it is just a "Giluy Milsa" -- it is just revealing -- that a Yad is
considered to be an explicit expression. Once we know that it is the same as
something spoken expressly, then we can even administer a punishment, just
like when one said the statement clearly. There is also no problem of "Shnei
Kesuvim ha'Ba'im k'Echad," because it was not necessary to have a Hekesh to
teaches that Yados work for Nezirus; Yados of Nezirus could be learned from
a Mah Matzinu from Nedarim. The Hekesh was necessary to teach other Halachos
to Nezirus from Nedarim (for example, that Bal Te'acher applies to Nezirus).
However, now that there is a Hekesh, we can also learn Yados through the
Hekesh, even if there had been no Binyan Av from Nedarim.

This explains why we can learn from Nedarim that Yados work for Kidushin.
The other side of Rav Papa's doubt, that perhaps Yados does not work for
Kidushin, is that perhaps we cannot learn Kidushin from Nedarim because
Nedarim is more severe. Why did the Ran not say that Rav Papa's doubt about
learning Yados from Nedarim was because perhaps the Halachah of Yados for
Nedarim was written not as a Giluy Milsa, and therefore there would be a
problem of "Ein Onshin Min ha'Din?" The reason is because if that was Rav
Papa's doubt, then Rav Papa would have questioned whether Yados applies to
*all* forms of Kinyanim, and not specifically Kidushin.

When Rav Papa asks if there is Yad for Pe'ah (for perhaps it is compared to
Nedarim with a Hekesh), obviously he is rejecting the approach that we
should learn from Yados of Nedarim because Yados of Nedarim is just a Giluy
Milsa. Rather, he is saying that perhaps there is no Yad for Kidushin
because it is not compared to Nedarim, and the only time Yados works is when
there is an explicit Hekesh in the Torah, like in the case of Nezirus.

2) IS A "SAFEK MATNAS ANIYIM" A "SAFEK ISUR" OR A "SAFEK MAMON"

QUESTION: The RAN cites the RAMBAN and RASHBA who rule stringently with
regard to whether Yad works for Tzedakah. They rule that Yad does work, and
one is obligated to give the Tzedakah that he pledged to give by using a
Yad, because "Safek Isur l'Chumra." The Ran argues with them, proving from
many sources that a Safek of Matnas Aniyim (gifts to the poor) or Matnas
Kehunah (gifts to the Kohanim) is considered a Safek Mamon, a Safek in a
monetary matter, and thus it should be decided leniently ("Safek Mamon
l'Kula"). What is the logic of the Ramban and Rashba who consider it to be a
Safek Isur?

ANSWER: The SHALMEI NEDARIM cites the KUNTRUS HA'SEFEIKOS (#1, in the name
of MAHARSHACH) who explains that when a person makes something Tzedakah, it
is a Neder Mitzvah, and he is obligated to give it to Tzedakah because of
the *Neder*, aside from the monetary obligation. Therefore, it cannot be
compared to other forms of gifts to poor people, such as Leket and Pe'ah,
which a person is not obligated to give because of a Neder but because of
the Torah's command, and therefore those obligations are considered Safek
Mamon, while Tzedakah is considered Safek Isur.

What, then, is the logic of the Ran, who considers a Safek of Tzedakah to be
a Safek Mamon and not a Safek Isur? The MAHARIT cited by the Shalmei Nedarim
explains that the Ran and the Ramban are arguing over what a person
obligates himself to do when he says "this coin is Tzedakah." According to
the Ramban, he obligates himself to bring the money to the poor person and
give it to him. Until he gives it, he has not fulfilled his obligation.
According to the Ran, though, when one says "this coin is Tzedakah," it is
similar to saying "this wheat is Pe'ah;" he is making the money into the
collective property of the poor people, and immediately upon it becoming the
property of the poor, he has fulfilled his Neder making it Tzedakah. What
remains is only an obligation to give it to the poor people (because it
belongs to them). Therefore, if there is a Safek whether or not it belongs
to them, it is a Safek Mamon and not a Safek Isur.

The Ramban argues because we never find that a person has the ability to
make something into the collective property of poor people. A person can
make something Hekdesh or Hefker, but he cannot make something into the
property of poor people.

(The Mishnah in Shekalim 5:6 says that if a person sets aside money for poor
people, and there was money left over, whatever remains must be given to
other poor people. From there it seems that as soon as one sets aside
something for a poor person, it becomes the property of poor people and must
be given to them. The Rashba, however, explains according to his own
reasoning (Teshuvos, cited by Shulchan Aruch YD 253:6) that the Mishnah
there is discussing money that was already handed over to the treasurer of
Tzedakah, and thus he acquired the money on behalf of the poor people. But
if the money was not yet given to the treasurer, the giver cannot make it
into the property of the poor people by just declaring it to be so.)

A practical difference between the Ran and the Ramban might be where a
person says that "this coin should be Tzedakah" and then he dies before
giving it to poor people. According to the Ran, the money belongs to poor
people already, and thus the heirs have to give it to them. According to the
Ramban, it was the father's obligation to give it to the poor people, and
since it had not yet entered the possession of the poor people, the heirs
are not obligated to give it.